What Does This Mean?

November 20, 2008

What Does This Mean?
will be a regular feature of the OPP website. Here is the first entry.

What Does This Mean?

Executive Orders and Regulations

We’ll be hearing about
Executive Orders
a great deal in the next few weeks, because incoming presidents frequently use them to move their own agenda items quickly. We’ve heard a great deal about
regulations
as the old administration departs and tries to leave its mark.

These two are impressive ways of imposing an administration’s policies on the nation. What they have in common is negative: they aren’t passed by Congress so they aren’t “law” in the usual sense. They evade the normal legislative process and so can be deliberately used to make end-runs round Congress. They are powerful tools in a president’s kit. Let’s look at them separately.

Executive Orders
are legally binding orders directed by the president to the Federal Administrative Agencies. They do not require Congressional approval, and indeed some Executive Orders have directly contradicted Congressional intent.

Here’s an example. President George W. Bush established Faith-based and Community Initiatives (FBCI) by executive order. Early in the Bush administration, he tried to get the Congress to pass an act incorporating “charitable choice”—allocating federal funds to faith-based organizations for social services—into juvenile justice and delinquency programs, aid to crime victims’ families, housing programs, domestic violence, and after-school programs, among others. The act passed the House of Representatives but did not pass in the Senate. Seeing no prospect of legislation, the president issued a series of executive orders establishing FBCI within 11 federal agencies.

Executive orders have been around as long as the nation itself and now number more than 13,000. Some major historical changes have occurred through their use. President Abraham Lincoln issued the Emancipation Proclamation as an executive order; Harry Truman integrated the U.S. armed forces and Dwight D. Eisenhower desegregated the public schools by executive order.

The differing ideologies of presidents can result in a ping-pong sequence of executive orders. In 1984 President Ronald Reagan issued an executive order which has become known as the “global gag rule”: it denied USAID funds for family planning to any organization in a recipient country that uses its own money to provide information about abortion. When Bill Clinton arrived in the White House, he rescinded the “gag rule” by executive order. But on the first day of his presidency, President Bush signed an executive order reinstating the “gag rule.” He added another executive order in 2003 extending the rule to include not only organizations receiving USAID funds but also organizations receiving funds through the U.S. State Department.

What can we do if we don’t like a president’s executive orders? Apart from exercising free-speech rights to protest, there are two paths: Congress can pass legislation, but if it opposes the president’s will, he can veto it. And the executive order can be challenged in court. This happened to Harry Truman after he seized control of the steel mills. The U.S. Supreme Court held that his executive order overstepped the bounds of presidential authority laid out in the Constitution.

Watch for President-elect Barack Obama’s first executive orders. They will tell us a great deal about his priorities.

Regulations
are rules issued by federal administrative agencies. A contemporary example: the Health and Human Services (HHS) proposed a regulation that would permit government funds to go to health service providers, even if those providers employ professionals who refuse their services on ideological or religious grounds.

Unlike executive orders, regulations operate under a system of rules. Regulations must be published in the
Federal Register
and they usually have a public comment period, which can be 30, 60, or 90 days. In the case of the HHS regulation, more than 200,000 public comments were received by the deadline—some of them yours.

The rules require that all the communications from the public must receive a response. This isn’t as burdensome as it looks, because although there may be 200,000 pieces of email, mail, or phone calls, many of them will repeat the same or closely similar sentiments. However, sheer volume of response may slow down the process.

After all the responses are read, the secretary of the agency (Mike Leavitt in the case of HHS) decides whether to modify the regulation or publish it as it was originally written. Most major regulations go into effect 60 days after publication.

That’s significant this year. It means that regulations must be in place on or before November 20, which is 60 days before the new administration. If they miss that deadline, they can’t go into effect because the administration will be out of office.

We’re seeing right now the flurry of rules called “midnight regulations” as the Bush administration tries to complete its agenda. Ironically, many of the environmental rules on the fast track are in fact de-regulations, that is they remove restraints on pollution, safety hazards, exposure to toxins that earlier regulations had put in place.

Unlike executive orders that a president can undo with another executive order, regulations are tough to get rid of. A 1996 law gave Congress the power to revoke recently imposed rules, but it has only once been used. Bills changing the content of regulation could be sponsored in Congress, but getting legislation passed is lengthy and uncertain.

The practical way for an incoming president to reverse regulations is to ask his agency heads to start the process all over again. It’s cumbersome and it may be untimely—a mountain top removed to get at the coal beneath can’t be replaced. If Secretary Leavitt of HHS announces the implementation of the “provider refusal” regulation, it could be a long time before a regulation reversing it can be published and go through the comment and review process.